61986J0094

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AGRICULTURE - PROCESSED PRODUCTS NOT COVERED BY ANNEX II TO THE TREATY - EXPORT REFUNDS - REFUNDS FIXED IN ADVANCE - DEDUCTION OF THE PRODUCTION REFUND FOR THE BASIC PRODUCT - RATE APPLICABLE - REFERENCE DATE - MONTH OF EXPORTATION

( REGULATION NO*2682/72 OF THE COUNCIL, ART.*4 ( 3 ) AND ART.*5 ( 2 )*)

ARTICLE 5 ( 2 ) OF REGULATION NO*2682/72 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON CERTAIN AGRICULTURAL PRODUCTS EXPORTED IN THE FORM OF GOODS NOT COVERED BY ANNEX II TO THE TREATY, AND THE CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS MUST BE INTERPRETED AS MEANING THAT THE FIXING IN ADVANCE OF THE EXPORT REFUND PROVIDED FOR THEREIN CONCERNS ONLY THE UNADJUSTED RATE WITHOUT DEDUCTION OF THE RATE OF PRODUCTION REFUND FOR THE BASIC PRODUCT . FOR THE PURPOSES OF THAT DEDUCTION, REQUIRED BY ARTICLE 4 ( 3 ) OF THE SAID REGULATION, THE RATE IN FORCE DURING THE MONTH OF EXPORTATION MUST BE TAKEN INTO ACCOUNT .

IN CASE 94/86

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

1 . MAIZENA GESELLSCHAFT MBH, 218 SPALDINGSTRASSE, HAMBURG,

2 . MAIZENA INDUSTRIE PRODUKTE GMBH, 191 DUESSELDORFER STRASSE, KREFELD,

3 . MAIZENA MARKENARTIKEL GMBH, 1 KNORRSTRASSE, HEILBRONN,

4 . MAIZENA DIAET GMBH, 1 KNORRSTRASSE, HEILBRONN,

5 . C.*H . KNORR GMBH, 2 KNORRSTRASSE, HEILBRONN,

6 . C.*F . HILDEBRANDT GMBH, 110 GRUENER DEICH, HAMBURG,

7 . CHEMURGIE GMBH ( IN LIQUIDATION ), 218 SPALDINGSTRASSE, HAMBURG,

8 . CHEMURGIE GMBH, 1 KNORRSTRASSE, HEILBRONN,

REPRESENTED BY MAIZENA GESELLSCHAFT MBH, 218 SPALDINGSTRASSE, HAMBURG,

AND

HAUPTZOLLAMT HAMBURG-JONAS ( PRINCIPAL CUSTOMS OFFICE )

ON THE INTERPRETATION OF COMMISSION REGULATION ( EEC ) NO*1681/80 OF 27 JUNE 1980 FIXING THE RATES OF THE REFUNDS APPLICABLE FROM 1 JULY 1980 TO CERTAIN CEREAL AND RICE PRODUCTS EXPORTED IN THE FORM OF GOODS NOT COVERED BY ANNEX II TO THE TREATY ( OFFICIAL JOURNAL 1980,*L*166, P.*41 ),

THE COURT ( THIRD CHAMBER )

COMPOSED OF Y . GALMOT, PRESIDENT OF CHAMBER, U . EVERLING AND J.*C.*MOITINHO*DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : C . O . LENZ

REGISTRAR : H . A . RUEHL, PRINCIPAL ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

MAIZENA GESELLSCHAFT MBH, HAMBURG, AND OTHERS, THE PLAINTIFFS IN THE MAIN PROCEEDINGS, BY HARALD SCHWARTZ, RECHTSANWALT, HAMBURG, AND

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY BERNHARD JANSEN, A MEMBER OF ITS LEGAL DEPARTMENT,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 5 FEBRUARY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 19 MARCH 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY JUDGMENT OF 11 MARCH 1986, WHICH WAS RECEIVED AT THE COURT ON 10 APRIL 1986, THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF A NUMBER OF COMMUNITY REGULATIONS CONCERNING THE EXPORT REFUNDS APPLICABLE TO SORBITOL .

2 THAT QUESTION WAS RAISED IN THE COURSE OF PROCEEDINGS BETWEEN SEVERAL COMPANIES COMBINED IN THE FORM OF A COMPANY GOVERNED BY CIVIL LAW, MAIZENA GMBH, ( HEREINAFTER REFERRED TO AS "THE PLAINTIFFS "), AND THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS ( HEREINAFTER REFERRED TO AS "THE DEFENDANT ").

3 BETWEEN 1 AUGUST AND 30 SEPTEMBER 1980 THE PLAINTIFFS EXPORTED SORBITOL CLASSIFIED UNDER TARIFF HEADINGS 29.04*C AND 38.19*T OF THE COMMON CUSTOMS TARIFF TO VARIOUS NON-MEMBER COUNTRIES . FOR THE MAIZE USED IN THE MANUFACTURE OF THAT PRODUCT THEY HAD THE RATE OF REFUND APPLICABLE ON 30 JULY 1980 FIXED IN ADVANCE .

4 THE DEFENDANT GRANTED THEM EXPORT REFUNDS AMOUNTING IN TOTAL TO DM*375*833.26 ON THE BASIS OF THE RATE OF REFUND APPLICABLE ON 30 JULY 1980 TO MAIZE FOR THE MANUFACTURE OF STARCH BUT ADJUSTED THE RATE TO TAKE ACCOUNT OF THE DIFFERENCE BETWEEN THE THRESHOLD PRICE AT THE TIME OF ADVANCE FIXING AND THE THRESHOLD PRICE DURING THE MONTH OF EXPORTATION AND DEDUCTED THE PRODUCTION REFUND APPLICABLE ON 30 JULY 1980 .

5 AFTER LODGING AN OBJECTION WHICH WAS REJECTED, THE PLAINTIFFS APPEALED TO THE FINANZGERICHT ( FINANCE COURT ) SEEKING AN ORDER REQUIRING THE DEFENDANT TO AMEND THE DECISIONS IN QUESTION BY TAKING INTO ACCOUNT THE PRODUCTION REFUND APPLICABLE TO MAIZE AT THE TIME OF EXPORTATION ( 1.723*ECU PER 100*KG ) AND NOT THE REFUND APPLICABLE ON 30 JULY 1980 ( 2.055*ECU PER 100*KG ).

6 UPON THE DISMISSAL OF THAT APPEAL THE PLAINTIFFS APPEALED ON A POINT OF LAW TO THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) WHICH STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT :

" WAS THE RATE OF EXPORT REFUND ON SORBITOL CLASSIFIED UNDER HEADINGS 29.04*C AND 38.19*T OF THE COMMON CUSTOMS TARIFF AND MANUFACTURED IN THE CUSTOMS AREA BETWEEN AUGUST AND SEPTEMBER 1980 FROM MAIZE CLASSIFIED UNDER TARIFF HEADING 10.05*B AND THEN EXPORTED TO NON-MEMBER COUNTRIES TO BE CALCULATED ACCORDING TO THE RATE OF PRODUCTION REFUND APPLICABLE IN THE MONTH OF EXPORTATION EVEN IF THE RATE OF EXPORT REFUND HAD BEEN FIXED IN ADVANCE AT THE RATE APPLICABLE ON 30 JULY 1980?"

7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING AS REGARDS THE RELEVANT COMMUNITY REGULATIONS AND THE OBSERVATIONS SUBMITTED BY THE PARTIES TO THE MAIN PROCEEDINGS AND BY THE COMMISSION, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

8 THE PLAINTIFFS AND THE COMMISSION SUBMIT THAT THE ANSWER TO THE QUESTION RAISED BY THE BUNDESFINANZHOF SHOULD BE IN THE AFFIRMATIVE . THE COMMISSION OBSERVES, HOWEVER, THAT THE RATE OF PRODUCTION REFUND APPLICABLE DURING THE MONTH OF EXPORTATION MAY BE TAKEN INTO ACCOUNT ONLY IF THE PLAINTIFFS PRODUCE EVIDENCE THAT THE LOWER RATE OF PRODUCTION REFUND WAS GRANTED IN RESPECT OF THE MAIZE .

9 ARTICLE 5 ( 2 ) OF REGULATION NO*2682/72 OF THE COUNCIL OF 12 DECEMBER 1972 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( 9-28 DECEMBER ), P.*42 ), APPLICABLE TO THE EXPORT REFUNDS IN QUESTION, PROVIDES FOR THE RATE OF EXPORT REFUND TO BE FIXED IN ADVANCE . HOWEVER, IT IS NOT SPECIFIED WHICH RATE OF REFUND MAY BE FIXED IN ADVANCE : THE UNADJUSTED RATE, DETERMINED ACCORDING TO THE CRITERIA LAID DOWN IN ARTICLE 4 ( 2 ) OF THAT REGULATION, OR THAT SAME RATE LESS THE PRODUCTION REFUND CALCULATED AT THE TIME OF THE APPLICATION FOR ADVANCE FIXING MENTIONED IN ARTICLE 4 ( 3 ).

10 IN THIS REGARD IT MUST BE POINTED OUT FIRST OF ALL THAT AT THE TIME OF THE EXPORTS IN QUESTION THERE WERE NO RULES FOR THE ADVANCE FIXING OF PRODUCTION REFUNDS . SUCH RULES WERE INTRODUCED ONLY UPON THE ADOPTION OF COUNCIL REGULATION NO*1009/86 OF 25 MARCH 1986 ESTABLISHING GENERAL RULES APPLYING TO PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTOR ( OFFICIAL JOURNAL 1986,*L*94, P.*6 ).

11 IT SHOULD ALSO BE OBSERVED THAT, ALTHOUGH NOT APPLICABLE IN THIS CASE SINCE THEY CONCERN PRODUCTS COVERED BY ANNEX II TO THE EEC TREATY, REGULATION ( EEC ) NO*1077/68 OF THE COMMISSION OF 26 JULY 1968 ON THE EXPORT REFUNDS APPLICABLE TO CERTAIN PRODUCTS PROCESSED FROM CEREALS AND FROM RICE ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ) P.*364 ) AND REGULATION ( EEC ) NO*2007/75 OF THE COMMISSION OF 31 JULY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF AN EXPORT LEVY ON STARCHES ( OFFICIAL JOURNAL 1975,*L*203, P.*7 ) PROVIDE THAT THE AMOUNT OF EXPORT REFUND FIXED IN ADVANCE IS TO BE INCREASED OR REDUCED BY ANY DIFFERENCE BETWEEN THE PRODUCTION REFUND GRANTED DURING THE MONTH IN WHICH THE APPLICATION FOR THE LICENCE IS MADE AND THE PRODUCTION REFUND GRANTED DURING THE MONTH OF EXPORTATION ( ARTICLE 1 ( 2 ) OF REGULATION NO*1077/68 ) OR THE DIFFERENCE RESULTING FROM THE MODIFICATION OF THE PRODUCTION REFUNDS BETWEEN THE DAY OF APPLICATION AND THE DAY OF EXPORT ( ARTICLE 3 ( 2 ) OF REGULATION NO*2007/75 ). IF, AS REGARDS THE PRODUCTS INVOLVED IN THIS CASE, THE COMMUNITY LEGISLATURE HAD WISHED TO ESTABLISH A DIFFERENT SYSTEM WHEREBY AN APPLICATION FOR THE ADVANCE FIXING OF THE EXPORT REFUND WOULD ALSO ENTAIL THE ADVANCE FIXING OF THE PRODUCTION REFUND, IT WOULD HAVE DONE SO IN A CLEAR MANNER AND GIVEN REASONS FOR THAT DIFFERENCE .

12 ARTICLE 5 ( 2 ) OF REGULATION NO*2682/72 MUST ACCORDINGLY BE INTERPRETED AS MEANING THAT THE FIXING IN ADVANCE OF THE RATE OF EXPORT REFUND PROVIDED FOR THEREIN CONCERNS ONLY THE UNADJUSTED RATE, WITHOUT DEDUCTION OF THE RATE OF THE PRODUCTION REFUND . CONSEQUENTLY, COMMISSION REGULATION ( EEC ) NO*1681/80 OF 27 JUNE 1980 ( OFFICIAL JOURNAL 1980,*L*166, P.*41 ), WHICH FIXED THE RATES OF REFUNDS APPLICABLE FROM 1 JULY 1980 AND PROVIDED FOR THE DEDUCTION OF A PRODUCTION REFUND OF 2.055*ECU PER 100*KG OF MAIZE, ONLY CONCERNED THE NORMAL CASE IN WHICH NO ADVANCE FIXING OF THE EXPORT REFUND HAD BEEN REQUESTED .

13 IT IS THEREFORE NECESSARY TO DETERMINE THE RATE OF PRODUCTION REFUND TO BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF THE DEDUCTION REQUIRED BY ARTICLE 4 ( 3 ) OF REGULATION NO*2682/72 .

14 IT MUST BE POINTED OUT THAT THE FOOTNOTE TO THE ANNEX TO COMMISSION REGULATION ( EEC ) NO*562/86 OF 28 FEBRUARY 1986 ( OFFICIAL JOURNAL 1986, L*55, P.*90 ) PROVIDES THAT THE PRODUCTION REFUND IN FORCE AT THE TIME OF EXPORT MUST BE DEDUCTED FROM THE AMOUNT OF THE EXPORT REFUND . IT WOULD NOT BE REASONABLE TO RESTRICT THAT RULE TO THE CASES IN WHICH THE ADVANCE FIXING OF THE EXPORT REFUND HAD NOT BEEN REQUESTED . THERE IS NO CONSIDERATION TO JUSTIFY THE CHOICE OF A DIFFERENT TIME FOR THE CASES IN WHICH SUCH ADVANCE FIXING HAD BEEN REQUESTED .

15 WHILST IT IS TRUE THAT THE AFORESAID REGULATION IS NOT APPLICABLE IN THIS CASE, IT DOES REFLECT A POLICY OF THE COMMUNITY LEGISLATURE, WHICH, AS POINTED OUT ABOVE, HAD ALREADY BEEN LAID DOWN IN REGULATIONS NOS*1077/68 AND 2007/75 .

16 THE RATE OF PRODUCTION REFUND TO BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF THE DEDUCTION REQUIRED BY ARTICLE 4 ( 3 ) OF REGULATION NO*2682/72 IS THEREFORE THE RATE WHICH WAS IN FORCE DURING THE MONTH OF EXPORTATION .

17 THE ANSWER TO THE QUESTION RAISED BY THE BUNDESFINANZHOF MUST THEREFORE BE THAT, IN ORDER TO CALCULATE THE RATE OF EXPORT REFUND ON SORBITOL CLASSIFIED UNDER HEADINGS 29.04*C AND 38.19*T OF THE COMMON CUSTOMS TARIFF AND MANUFACTURED IN THE CUSTOMS AREA OF THE COMMUNITY BETWEEN AUGUST AND SEPTEMBER 1980 FROM MAIZE CLASSIFIED UNDER TARIFF HEADING 10.05*B AND THEN EXPORTED TO NON-MEMBER COUNTRIES, THE RATE OF PRODUCTION REFUND APPLICABLE IN THE MONTH OF EXPORTATION HAD TO BE TAKEN INTO ACCOUNT, EVEN IF THE RATE OF EXPORT REFUND HAD BEEN FIXED IN ADVANCE AT THE RATE APPLICABLE ON 30 JULY 1980 .

COSTS

18 THE COSTS INCURRED BY THE COMMISSION, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE BUNDESFINANZHOF BY

ORDER OF 11 MARCH 1986, HEREBY RULES :

IN ORDER TO CALCULATE THE RATE OF EXPORT REFUND ON SORBITOL CLASSIFIED UNDER HEADINGS 29.04*C AND 38.19*T OF THE COMMON CUSTOMS TARIFF AND MANUFACTURED IN THE CUSTOMS AREA OF THE COMMUNITY BETWEEN AUGUST AND SEPTEMBER 1980 FROM MAIZE

CLASSIFIED UNDER TARIFF HEADING 10.05*B AND THEN EXPORTED TO NON-MEMBER COUNTRIES, THE RATE OF PRODUCTION REFUND APPLICABLE IN THE MONTH OF EXPORTATION HAD TO BE TAKEN INTO ACCOUNT, EVEN IF THE RATE OF EXPORT REFUND HAD BEEN FIXED IN ADVANCE AT THE RATE APPLICABLE ON 30 JULY 1980 .